You live where you work: your rights in Puerto Rico

What exactly a live-in domestic worker is

In Puerto Rico a great many people care for an elderly or ill person and stay overnight in the home. That situation has a legal name (**live-in domestic service worker**) and it comes with a different rule from the one that applies to someone who comes and goes.

Start with the big point: **persons employed in domestic service in private homes are covered by the FLSA**. They are owed at least minimum wage for all hours worked and time and a half over 40 hours in a workweek, unless an exemption applies. The list of who is a domestic worker is broad, and the U.S. Department of Labor writes it out in full: companions, babysitters, cooks, waiters, maids, housekeepers, nannies, nurses, caretakers, handymen, gardeners, home health aides, personal care aides and family chauffeurs.

Now the definition that decides everything. To be live-in you must reside on the employer's premises either **permanently** or for **extended periods of time**, and each term has an exact measure:

The federal fact sheet gives two examples that remove the doubt. Someone residing on the premises five consecutive days from 9:00 a.m. Monday until 5:00 p.m. Friday (sleeping four consecutive nights there) is residing for an extended period. And someone residing five consecutive nights from 9:00 p.m. Monday until 9:00 a.m. Saturday (sleeping four straight days there) also is.

• **Permanently:** lives, works and sleeps on the employer's premises **seven days a week**, and therefore has no home other than the one the employer provides under the employment agreement.
• **For an extended period:** lives, works and sleeps on the premises **five days a week (120 hours or more)**. And if fewer than **120 hours** are spent working and sleeping there but the worker resides **five consecutive days or nights**, that also counts as an extended period.

Who is NOT live-in even while sleeping there

This part gives overtime back to many people, and it deserves care because both cases are common in Puerto Rico.

**First, temporary work.** Someone who works for the household temporarily for only a short period (the fact sheet's example is **two weeks**) is **not** a live-in domestic service worker, because residing on the household's premises implies more than temporary activity. In that case the employer **cannot claim the exemption** and must pay time and a half over 40 hours in a workweek.

**Second, and this is the big one: 24-hour shifts.** Someone who works 24-hour shifts but does **not** reside on the premises permanently or for extended periods is **not** a live-in domestic service worker, and therefore **must be paid time and a half** for all hours over 40 in the workweek.

It is a confusion that costs money every month. Working a 24-hour shift does not make you live-in. Sleeping there one or two scattered nights does not either. The measure is five consecutive days or nights, or 120 hours, or seven days with no other home.

If an agency employs you, the exemption has not applied since 2015

This is the point that carries the most weight in Puerto Rico, where a huge share of in-home care is contracted through home care and home health aide agencies.

The live-in overtime exemption may be claimed by **whoever employs the worker as an individual, family or household**. That is the whole list.

The Department of Labor amended its regulations and, **effective January 1, 2015**, **third party employers (such as home care agencies) may NOT claim the overtime exemption** for live-in domestic service workers. They must pay at least the minimum wage for all hours worked and overtime at time and a half over 40 hours in a workweek, **even if the worker is jointly employed by the household**.

Read that again, because it is the difference between being paid and not: the family also being an employer does not save the agency. If your check comes from an agency, the live-in exemption **does not apply to you** and hours past 40 are paid at time and a half.

If you work through an agency and have gone years without seeing overtime on a pay stub, that is the first question to ask, and the one to put in writing in a complaint.

The exemption is from overtime, not minimum wage, and in PR that is $10.50

Even where the exemption fully applies (family as employer, permanent or extended residence) **minimum wage stays alive**. The federal fact sheet puts it this way: employers must pay live-in domestic service workers at least the federal minimum wage, currently $7.25 per hour, for all hours worked. And it adds in parentheses the line that matters most here: **"the worker may be entitled to a higher hourly wage under state law requirements."**

In Puerto Rico that requirement exists and has a number. **Act 47-2021** set the island's minimum wage at **$10.50 an hour** from July 1, 2024, and its Section 2.01 (29 L.P.R.A. § 262) says the state minimum prevails while it is higher than the federal one. Section 2.02 applies the increases to FLSA-covered workers with listed exclusions, the agricultural industry, employees of the Puerto Rico government, its municipalities and the Judicial and Legislative branches, and the administrators, executives and professionals of Regulation Number 13. **Domestic service is not on that list**, and the federal fact sheet itself confirms the domestic worker is FLSA-covered.

So the figure to carry in your head in Puerto Rico is not $7.25: it is **$10.50 an hour for all hours worked**, even where the overtime exemption does apply.

Which hours are paid when you live there, and the written agreement

Living in the house creates an obvious practical problem: where does the work end and your life begin? The federal rule answers with simple logic.

When a live-in worker engages in **typical private pursuits** (eating, sleeping, entertaining and other periods of complete freedom from all duties) **that time need not be paid**. On that basis, employer and worker **may agree** to exclude time spent during a bona fide meal period, a sleep period and off-duty time. The Department will accept **any reasonable agreement of the parties**, taking into consideration all the pertinent facts.

Now the protection, which is the part to memorize: **if the meal periods, sleep time or other periods of free time are interrupted by a call to duty, the interruption must be counted as hours worked**. If you get up in the middle of the night to attend to the patient, that hour is paid. It is not a courtesy: it is the rule.

And there is more than one safeguard around the agreement:

The fact sheet's closing is the one to remember when an employer says "the agreement says otherwise": the employer must **track and record all hours worked** by domestic service workers, including live-in employees, and workers must be compensated **for all hours actually worked notwithstanding the existence of an agreement**. The agreement cannot erase hours you really worked. And failure to keep an accurate record of hours may result in back wage liability.

• **The employer must keep a copy of the agreement.**
• **If the hours actually worked consistently differ from the existing agreement**, employer and live-in worker **must enter into a new written agreement** reflecting the actual hours.
• **Since January 1, 2015** the employer is also required to keep records showing, among other things, **the exact number of hours worked** by the live-in domestic service worker (29 CFR § 516.2(a) and § 552.110).
• **The employer may satisfy that record by requiring you to record your actual hours and submit them.** Some use forms asking which tasks were performed and how many hours in each activity; others simply ask for handwritten notes; and the employer may keep the record itself.

What Puerto Rico law adds and what it takes away

The federal analysis is not everything. In Puerto Rico domestic service has its own treatment, and both sides need to be known.

**What it takes away:** **Article 13 of Act 379 (29 L.P.R.A. § 285)**, in subsection **(e)**, says the hours law **shall not apply** to "persons employed in domestic service." So the state protection of the eight-hour day does not cover you through that route.

**What the same subsection gives back, and not everyone knows it:** subsection (e) goes on to say those persons "nevertheless shall be entitled to **one rest day for every six (6) consecutive days of work**, as provided in **Act 206-2016**." The Department of Labor and Human Resources Guides confirm it, citing Article 3.01(d) of that law, the **Bill of Rights of Domestic Service Employees**. It is a state right that survives every federal exemption.

**What it also takes away:** the **Christmas bonus**. The DTRH Guides list those excluded from Act No. 148, and there appear persons employed "in domestic service or in family residences," alongside independent contractors, agricultural activities, charitable institutions, and employees of the Government of Puerto Rico and its three branches.

Put together, the map for someone living in the home where they work in Puerto Rico looks like this: minimum wage of $10.50 for all hours worked; overtime depending on who the employer is, a family may claim the exemption, an agency may not; the rest day for every six consecutive days, yes; the Christmas bonus, no.